Ruff v. Credit Adjustment, Inc.

Filing 2

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS denying 1 MOTION for Leave to Proceed in forma pauperis. Objections to R&R due by 7/10/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/26/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GERRY RUFF,
Plaintiff,
Civil Action 2:17-cv-540
Judge George C. Smith
Magistrate Judge Jolson

v.

CREDIT ADJUSTMENT, INC.,
Defendant.

REPORT AND RECOMMENDATION
On June 21, 2017, Plaintiff filed a motion for leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). (Doc. 1). In Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331
(1948), the Supreme Court set forth the legal standard applicable to a motion to proceed in forma
pauperis. An affidavit of poverty is sufficient if it reflects that the plaintiff cannot pay the
Court’s filing fee without depriving himself and his dependents the “necessities of life.” Id. at
339 (internal quotation marks omitted). Although the plaintiff need not be totally destitute in
order to proceed in forma pauperis, paying the filing fee must be more than a mere hardship. See
Foster v. Cuyahoga Dep’t of Health & Human Servs., 21 F. App’x. 239, 240 (6th Cir. 2001)
(noting that “the question is whether the court costs can be paid without undue hardship”).
Consequently, unless it is clear that the one-time payment of the Court’s filing fee will render the
plaintiff unable to provide for himself and his dependents, the Court cannot grant him in forma
pauperis status. See Adkins, 335 U.S. at 339.
Plaintiff has commenced five cases in this Court and has proceeded in forma pauperis in
all but one, in which his motion was denied. Gerry Ruff-El v. Nicholas Fin., Inc. et al., 2:11-cv-

618 (Doc. 5); Gerry Ruff-El v. Fumble Recovery LLC, 2:12-cv-343 (Doc. 2); Gerry Ruff-El v.
Capital Recovery Sys., Inc., 2:12-cv-383 (Doc. 2); Gerry Ruff v. Fed. Adjustment Bureau, 2:16cv-943 (Doc. 4); but see Cambridge Mun. Court v. Gerry Ruff-El, 2:11-cv-783 (Doc. 3) (denying
leave to proceed in forma paueris). The Undersigned was assigned to Plaintiff’s most recent
case against the Federal Adjustment Bureau, 2:16-cv-943. In that case, Plaintiff represented that:
his income at Verizon Wireless was $2,278.82 per month; he provided $200 per month to his
minor son and daughter (totaling $400 per month); he had $200 in cash or in a bank account; and
he did not own any automobiles. (Doc. 3 at 2–3). Plaintiff also represented the following:

(See id.). Based on those representations, the Court allowed Plaintiff to proceed in forma
pauperis. (Doc. 4).
It appears that in the eight months since filing his motion for leave to proceed in forma
pauperis in Case No. 2:16-cv-943, Plaintiff’s financial circumstances have changed.

He

represents that his salary at Verizon Wireless has increased by $181.20 to $2460.02 per month,
but he has cut his support payments to his minor son and daughter in half, now paying just $100
per month per child, for a total of $200 per month. (Doc. 1 at 2). He no longer has any cash on
hand or in an account, and his creditors have changed to the following:

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(Id. at 3). Even putting aside the fact that Plaintiff completed the forms, which require a listing
of all creditors in a disparate way, it appears that Plaintiff has opted to undertake the new
expense of a car payment for $500 per month. (Compare Doc. 3 in 2:16-cv-943 with Doc. 1 in
2:17-cv-540).
Given these circumstances, it appears that Plaintiff has access to sufficient assets such
that paying the one-time filing fee of $400.00 would not impose an undue hardship upon him.
That is, paying the filing fee would not cause Plaintiff to deprive himself the necessities of life.
Accordingly, it is RECOMMENDED that Plaintiff’s motion for leave to proceed in forma
pauperis be denied. (Doc. 1).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further

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evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: June 26, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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